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The Rule of Law: Retreat from Accountability

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Research Report The Rule of Law: Retreat from Accountability “anasalhajj / Shutterstock.com” Executive Summary Schoolchildren stand on their destroyed school because of the war in the Yemeni city of Taiz Yemen / Taiz City. 2 November 2018 This is Security Council Report’s fifth research devastating conflicts of recent times, Council report on the rule of law. In it, we continue to members have–apart from general rhetoric–often explore the Security Council’s work in upholding ignored issues of accountability. individual criminal accountability as an aspect of The primacy of various national and regional 2019, No. 3 its rule of law agenda in the context of its primary interests evident in our four case studies cor- 23 December 2019 responsibility for maintaining international peace relates with Council members’ inconsistent This report is available online at securitycouncilreport.org. and security. Through an examination of four situ- upholding of accountability when political alli- ations the Council deals with regularly—Myanmar, ances are at stake. It may also be part of a wider For daily insights by SCR on evolving Security Council actions please Syria, Ukraine, and Yemen—the research report trend in the Council of reduced commitment subscribe to our “What’s In Blue” takes stock of and assesses the Council’s current towards ending impunity. series at whatsinblue.org or follow @SCRtweets on Twitter. attitude and actions in respect of accountability. In previous years, Council members have at The report shows that in some of the most times demonstrated their ability to rise above Security Council Report Research Report Decembert 2019 securitycouncilreport.org 1 Executive Summary their disagreements in order to adopt practi- cooperate with international criminal mech- 1 Executive Summary cal measures to advance accountability. The anisms, and alone has the power to enforce 2 Part I: Introduction Council currently appears at its most divided its decisions. Moreover, collective security since the end of the Cold War, however, and measures and enforcement action autho- 3 Part II: Case Studies the report’s case studies demonstrate that rised by the Council have a more solid legal 3 Myanmar suspected perpetrators of grave crimes can basis and enjoy more legitimacy in the eyes 7 Syria now expect minimal Council consequenc- of the wider membership than such actions 17 Ukraine es for their actions because of the particu- carried out unilaterally. 20 Yemen lar interests of one or more of the Council’s In the past, while the Council was also permanent members. inconsistent with respect to accountability, it 27 Part III: Observations and In these four cases, the Council has as yet could be innovative and assertive – for exam- Conclusions been unable either to bring justice to victims ple, by establishing the ad hoc criminal tri- or seriously affect the course of the conflict. bunals. Taking decisive approaches towards While other international actors have at times current conflicts on its agenda, where rele- demonstrated a more assertive and proactive vant, would enhance its legitimacy as well as response, only the Council has the ability to its effectiveness in maintaining international create binding obligations on the states con- peace and security. cerned and the wider UN membership to Part I: Introduction Security Council Report has published sev- in any given conflict, the case studies sug- eral reports analysing aspects of the relation- gest that the Council’s willingness to back its ship between the Security Council and the rhetoric with action could make a difference. rule of law. Two of these reports focused on The report concluded that a more consistent the Council’s work in upholding individual approach to accountability by the Council criminal accountability as part of its rule could have a positive impact on country situ- of law agenda in the context of its primary ations as well as its own profile in maintain- responsibility of maintaining international ing international peace and security. peace and security. Our August 2015 report The Rule of Law: Our 2013 report The Rule of Law: The The Institutional Framework: International Security Council and Accountability focused Criminal Courts and Tribunals looked at the on the normative aspect of the Council’s work institutional architecture that the Security on upholding individual criminal account- Council had established and used to advance ability. It found that despite its stated com- individual criminal accountability. The report mitment to accountability, both as a prin- analysed the establishment of the two ad hoc ciple and as a practical tool that can promote tribunals, the International Criminal Tribu- peace and security and have a preventive nal for the former Yugoslavia (ICTY) and the impact, the Council had been inconsistent International Criminal Tribunal for Rwanda in its approach. As several of the case stud- (ICTR) as well as the successor International ies in that report showed, the Council has, Residual Mechanism for Criminal Tribunals at times, used the tools available to uphold (IRMCT) and their respective relationships accountability in ways that had immediate with the Security Council. It further exam- impact and brought long-term improvement ined the mixed tribunals (the Special Court at country level. At other times, it failed to for Sierra Leone and the Special Tribunal for emphasise accountability mechanisms and Lebanon) that the Council had been involved measures, and to follow up on its own previ- in establishing. It also reflected on the Coun- ous decisions regarding individual account- cil’s relatively short yet complex relationship ability. The report demonstrated that in with the ICC. Through these case stud- ignoring accountability issues, the Council ies, the report concluded that the Council may have adversely affected some conflict had proven resourceful over the previous situations. While many variables are at play two decades in establishing a framework, or 2 whatsinblue.org Security Council Report Research Report December 2019 Part I: Introduction a “tool box”, to contribute to internation- importance and relevance of accountability. sexual violence were removed from the final al peace and security through institutional A prime example is the Council’s diffi- version of resolution 2467. innovation and creativity. At the same time, culty in adopting a presidential statement to In another example, during the renewal the Council had not consistently followed commemorate, on 20 August 2019, the 70th of the mandate of the UN Multidimension- up on these significant steps by providing anniversary of the adoption of the universal- al Integrated Stabilization Mission in the proper institutional support to these bodies ly ratified four Geneva Conventions, which Central African Republic (MINUSCA) in to enforce its own decisions and to secure regulate the conduct of armed conflict and November 2018, the US objected to previ- successful completion of the tasks entrusted are considered the cornerstone of interna- ously agreed language regarding MINUSCA to them, for example by not taking action to tional humanitarian law. Poland, the Coun- cooperation with the ICC in the context of ensure member state cooperation with these cil president, had intended to adopt a short apprehending wanted criminals. (The Cen- mechanisms or by shifting the financial bur- statement on international humanitarian law, tral African Republic [CAR] is a party to den of its ICC referrals from the UN to the based primarily on previously agreed Council the Rome Statute, and the ICC is currently ICC. language. References to upholding account- investigating alleged crimes committed in The present report continues Security ability for grave violations of international the CAR since 2012). Eventually, as a result, Council Report’s focus on individual crimi- humanitarian law became contentious, how- resolution 2448 contains additional lan- nal responsibility within the framework of the ever, and negotiations lasted three weeks. The guage intended to narrow the relevance of Security Council’s work. It comes at a time final text reiterates the obligations of states to the ICC in this context. of some achievements, such as the estab- ensure the prosecution of those that commit These and other negotiations and out- lishment of the UN Investigative Team for grave breaches under the Conventions, but comes demonstrate that on top of its incon- Accountability of Da’esh (UNITAD), which explicit language calling on states to comply sistent actions on accountability, the Coun- is to consist of Iraqi investigative judges and with their obligations to end impunity and to cil’s rhetorical commitment to ending other criminal experts as well as interna- investigate and prosecute those responsible impunity has also regressed. tional experts, who were directed to collect, for genocide, crimes against humanity, war Through an examination of four situ- store and preserve evidence of ISIL’s crimes crimes or other serious violations of interna- ations—Myanmar, Syria, Ukraine, and in Iraq that could be used later in criminal tional humanitarian law was found too over- Yemen—this report assesses the Council’s proceedings in Iraqi national-level courts. reaching by Russia and was excluded, despite current attitude towards individual crimi- While UNITAD is mandated to investigate similar text in resolution 2467 of 23 April nal accountability, including whether it has only one party to a wider conflict, and
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